Pradeep vs State Of U.P.
2022 Latest Caselaw 21124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27287 of 2022
 

 
Applicant :- Pradeep
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sanjeev Kumar Rai
 
Counsel for Opposite Party :- G.A.,Anuj Srivastava
 

 
Hon'ble Manish Mathur,J.

1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, learned counsel for informant and perused the record.

2. This first bail application has been filed with regard to Case Crime No.316 of 2019 under Sections 396, 412, 120-B I.P.C., P.S. Baraut, District Baghpat.

3. As per contents of first information report, the incident has occurred on 30.04.2019 between 09.15-09.30 P.M. when four unknown persons are said to have barged into the show room owned by the first informant for the purposes of committing theft and in the process an employee of the show room, namely, Vikram was shot at due to which he passed away. Allegedly money and other valuables were taken away by the intruders. Apparently, with regard to the same incident brother of deceased also lodged an F.I.R. which was registered as Case Crime no.317 of 2019 in which a completely different version of the incident has been narrated with allegation being levelled upon the owner of show room along with his family members and certain friends indicating that they murdered brother of first informant on account of a dispute regarding payment of pending wages to him. It appears that closure report was thereafter filed with regard to Case Crime No.317 of 2019 and with regard to Case Crime No.316 of 2019, the matter was transferred for investigation to CBCID.

4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him. It is submitted that despite two versions of the same incident being available in separate first information reports, applicant has not been named in either of them and his name has been introduced only on the basis of alleged confessional statement of one Himanshu, who, as per owner of the show room namely Prashant, allegedly fired upon the deceased Vikram due to which he passed away. Applicant has also been taken into custody on the basis of alleged recovery of certain valuables of the show room said to have been stolen on the date of incident as well as recovery of a local fire arm, during the process of investigation in another matter of theft and at the instance of a police informer. It is submitted the alleged recovery from applicant does not have any independent witnesses and has occurred after 25 days of the incident. It is submitted that despite both the first information reports indicating eye witness account, applicant has not been named in either F.I.R and even test identification parade was not conducted by the police to ascertain the complicity of applicant in the crime alleged. Attention has been drawn to the additional statement of first informant Prashant Tomar to submit that he has clearly named co-accused Himanshu as having fired upon the deceased. Attention has also been drawn to paper no.20 of case diary dated 5.06.2019 to indicate that even the use of allegedly recovered local fire arm in the incident is not corroborated since no F.S.L. report was ever sought with regard to involvement of the said pistol which was returned to Prashant Tomar. As such, it is submitted that there is neither any direct or circumstantial evidence against applicant except for the alleged extra-judicial confessional statement of co-accuse Himanshu and the alleged recovery which does not have any independent witness. It is submitted that applicant is in jail since 25.05.2019 without even charges having been framed till date.

5. Learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant have opposed the bail application with submission that the said Prashant Tomar being eye witness account has clearly indicated involvement of co-accused Himanshu in the incident and it is on confessional statement of Himanshu that applicant has been taken into custody with regard to his involvement in the crime. It is submitted that the valuable recovered from applicant were clearly identified as that of the show room from where theft has occurred along with local fire arms from possession of applicant. It is further submitted that the investigation was thereafter transferred to CBCID who have filed a supplementary charge sheet in the matter and, therefore charges could not be framed.

6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that two different first information reports have been lodged with regard to same incident with completely different versions with both first informants alleging themselves to be eye witnesses of the incident. Surprisingly, name of applicant does not figure in either of the first information reports and has been introduced subsequently on the alleged extra judicial confessional statement of main accused Himanshu and other co-accused. As per eye witness account of Prashant Tomar, Himanshu is the person directly involved in shooting of the deceased. Admissibility of confessional statement in terms of Section 26 of the Indian Evidence Act would be required to be corroborated during course of trial and at this stage no comments thereupon can be made. The alleged recovery of valuables from applicant is of 25 days subsequent to the date of incident at the instance of police informer and also does not appear to have any independent witness. From the record, it also transpires that no F.S.L. report was called for with regard to recovery of alleged local fire arm used in the incident at the instance of applicant since the same was never sent for the said purpose. Applicant is in jail since 25.05.2019 with charges not yet having been framed. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.

8. Accordingly bail application is allowed.

9. Let applicant Pradeep, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 15.12.2022

kvg/-